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How does Divorce affect a Will? by Cleo Cupido

CLEO CUPIDO

A divorce is often both financially and emotionally taxing for the parties.  One of the matters requiring attention is that of a Will containing bequests to a former spouse.  This is also a matter dealt with in legislation.

Section 2B of The Wills Act 7 of 1953 provides that if a person dies within 3 months after a divorce or annulment of marriage, any Will executed prior to the divorce or annulment must be given effect to as if the former spouse had passed away before dissolution of the marriage, unless it appears from the Will that the testator intended the former spouse to benefit notwithstanding the dissolution of the marriage.  This provision has the effect of disinheriting the former spouse as if that spouse had already passed away, resulting in the former spouse’s inheritance devolving by way of intestate succession on the testator’s heir(s).

In a recent Western Cape High Court judgment (W v Williams-Ashman NO & Others (WCC): 28 April 2020) this provision was challenged by an Applicant who argued that it is inconsistent with the Constitution and contrary to public policy.  The argument did not succeed.  The court held that the section serves a legitimate social purpose and that the deprivation of inheritance resulting from the provision is not arbitrary.  The court gave various reasons for its judgment that the provision serves a legitimate purpose in society.  First, it is generally accepted that a divorce might involve negative emotions and that a Testator might not want his or her former spouse to inherit.  Second, the parties usually come to an agreement during the divorce on how they want assets to be divided.  Last, with the prevalence of divorce in modern society it is important to legislate for the situation where former spouses may not realize the effect of not creating a new Will, with resulting prejudice to a new spouse or children.

It is important to note that section 2B of The Wills Act applies only for a 3-month period:  If the testator passes away more than 3 months after the divorce or annulment without changing his or her Will, the former spouse will be entitled to an inheritance provided for in the Will.

Should you have queries about your existing Will or wish to draw up or amend a Will which correctly reflects your wishes, please contact our Estate and Trust Department for assistance.

Written by Cleo Cupido – Associate, Trust and Estates

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