Lize de la Harpe, Senior Legal Advisor at Sanlam Corporate

Introduction

Although section 2B of the Wills Act, 1953 came into operation roughly 30 years ago, it remains a provision which many people are unaware of. In this article we will take a look at a recent Supreme Court of Appeal case where this important section was unpacked.

The law

Section 2B of the Wills Act, 1953 states that if a person dies within 3 months after they were divorced (or their marriage was annulled), any will which they executed prior to such divorce or annulment must be given effect to as if their former spouse had died before such dissolution, unless it appears from the will itself that the deceased testator intended to benefit the surviving previous spouse.

In essence, the rationale behind the inclusion of Section 2B into the Wills Act was to make provision for a three month “grace period” during which divorcees can draft new wills that take proper account of their altered circumstances.

The judgment in J W v Williams-Ashman NO and Others [2020] ZAWCHC 27

In the matter of J W v Williams-Ashman NO and Others [2020] ZAWCHC 27 the court was asked to declare section 2B of the Wills Act inconsistent with the Constitution.

The applicant was the former spouse of the late NW. The parties were married to one another out of community of property and subject to the accrual system, on 11 June 2011. Some 4 days before their marriage NW executed a will in which she bequeathed her entire estate to her “husband” (the applicant) and appointed the first respondent, her attorney, as executor.

Their marriage became strained, and they eventually divorced on 24 October 2016, incorporating a consent paper setting out the division of their assets. On 18 October 2016, i.e.: about a week before the decree of divorce was issued, NW sent the applicant an email in which she asked him whether he had changed his will, or whether their agreement that they would leave their assets to one another in the event of their death still stood. The applicant never responded to the email. On 8 December 2016 NW committed suicide.

Because NW died within the three-month period as envisaged by section 2B, the applicant could no longer inherit from her estate. As a result, NW’s parents stood to inherit the residue of her estate under the rules of intestate succession as she left no descendants.

The applicant approached the Western Cape High Court for an order declaring that section 2B is inconsistent with the Constitution in that it conflicts with section 25(1), and that it offends the provisions of section 34. He based his arguments on his allegation that the provisions of section 2B are quite unknown to the general population, as well as on the email NW sent him regarding his will. The application was opposed.

The court started off with looking at the history of section 2B (including similar laws in other foreign countries) and held that the result of section 2B is proportional to the situation it aims to address and is therefore not unconstitutional. The court also held that section 2B is not procedurally unfair and does not constitute a limitation of the applicant’s right of access to a Court as set out in section 34 of the Constitution. The application was accordingly dismissed.

Aggrieved with the outcome, the applicant lodged an appeal against the judgment.

The appeal

The appellant did not contest the proposition that section 2B has a legitimate object. Rather, the appellant argued that it is too restrictive because it does not permit of the consideration of evidence outside of the will to determine whether the testatrix intended to benefit her previous spouse, notwithstanding the dissolution of the marriage. Whether this constraint amounts to arbitrary deprivation in terms of section 25 of the Constitution was thus the issue upon which the appeal turned.

The SCA held that a testatrix gives expression to her intention in her will, properly executed in conformity with the Wills Act. It is this intention that is relevant to the paramountcy carve-out. In addition, what must be determined is not some general wish to benefit the previous spouse, but an intention to do so, in her will, despite the divorce. The court found there were no reasons to deviate from the settled legal principle that the will of a deceased is the ultimate expression of such a deceased’s intention with regard to succession. As such, the appellants arguments could not stand. The appeal was dismissed with costs.

Conclusion

Most people who get divorced do not realise that, unless they revoke a prior will which favours their ex-spouse, it will have to be given effect to notwithstanding the terms of any generous settlement they may have arrived at during the divorce. In fact, they may even assume that divorce will automatically result in disinheritance of their former spouse – which is not the case.

The possibility of a testator/testatrix spouse dying immediately after their divorce (i.e.: within the 3-month period provided for in section 2B) is extremely low. Thus, in reality, the provision only affects a very small number of persons (and that’s in all likelihood why this provision is relatively unknown).

Nevertheless, estate planners and will drafters must ensure that divorcing clients are made aware of the implications of section 2B and plan accordingly. Also remember, the provision does not apply in respect of a testator who has executed another will post divorce – any will signed after a divorce is excluded from section 2B’s ambit and will therefore not be affected, even if it was made within the 3 month period after the date of divorce.

ENDS