• Lize de la Harpe

Divorce and Death – the impact of Section 2B on your will


Introduction


Not many people are aware of the statutory disqualification as set out in Section 2B of the Wills Act No. 7 of 1953, which states that if a testator dies within three months of becoming divorced, and that person executed a will before such divorce, the will shall be implemented as if the previous spouse had died before the date of divorce, unless it is clear from the will that the testator intended to benefit their ex-spouse despite the divorce. In this edition we look at the impact of this section.


The Wills Act No. 7 of 1953


Section 2B of the Wills Act No. 7 of 1953 (“the Act”) reads as follows:


“2B. Effect of divorce or annulment of marriage on will.—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.”

(my emphasis)


Simply put: if a testator dies within three months of his/her divorce, and that person executed a will before the divorce, the will shall be implemented as if the previous spouse had died before the date of divorce, unless it is clear from the will that the testator intended to benefit his ex despite the marriage ending.



Case law


One of the first cases to deal with the interpretation of Section 2B of the Act was the matter of Louw NO v Kock and another 2017 (3) SA 62 (WCC).


In 2004 the first respondent and her previous spouse executed a joint will in which (at clause 1) they each nominated the survivor of them (“die langslewende”) as sole and universal heir. After 29 years of marriage, they divorced in October 2014. The deceased died within three months after the divorce on 7 January 2015.


The Master (the second respondent) refused to give effect to the relevant clause of the will for the reason that section 2B of the Act prevented the first respondent from inheriting. The first respondent (who had long since remarried) instituted an action to compel the Master to give effect to the will. She claimed that she was entitled to inherit under the will as no other person was nominated as heir to the deceased, and because it appeared that the deceased did not intend to benefit any other person upon his death. She furthermore claimed that it was the deceased’s intention at all times that she should inherit, notwithstanding their divorce.


In its judgement, the court examined the rationale behind the inclusion of section 2B (as introduced by section 4 of the Law of Succession Amendment Act No. 43 of 1992), being to regulate the effect of a divorce or the annulment of a marriage on a will. The legislature had in fact created a three-month “grace period” during which divorcees could draft new wills that take proper account of their altered circumstances. Failure to update a will during this three-month period would leave the will (and any bequests to the ex-spouse) intact should the testator die after the three-month grace period. The operation of this section, however, leaves the remainder of the will unaffected, and therefore other beneficiaries will still be entitled to the benefits allotted to them by the testator.


The court held that the meaning and effect of section 2B is clear and unambiguous – the death of one of the previous spouses within three months of the date of divorce will result in the surviving previous spouse being deemed to be predeceased and thus unable to inherit unless it appears from the will itself that the deceased testator intended to benefit the surviving previous spouse. In this instance there was no such intention – the will simply provided for the longest living to be the sole heir of the first dying. The Court held that, if the deceased intended the first respondent to inherit after divorce, the will would have explicitly stated so or he would have made a new will indicating as such. The Court furthermore confirmed that section 2B does not permit extraneous evidence – the testator’s intention must appear from the will itself. The court quoted from the judgement in the matter of Aubrey-Smith v Hofmeyer 1973(1) SA 655 C where the learned judge held as follows at 657E: