Did you know that you have 3 months after a divorce to make changes to your Will? Updating your will after significant changes, such as divorce, is vital to ensure protection of your estate. Not doing so immediately after a divorce means that the words of a person’s last will and testament may be disregarded. Such instance is governed by Section 2B of the Wills Act No. 7 of 1953 (the Wills Act) which 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.” (emphasis added)

This section is the only basis upon which the surviving ex-spouse will be disinherited if no new will or codicil amending the deceased’s existing will has been drafted per section 2(3) of the Wills Act which states that:

“(3) If a court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting or execution thereof, was intended to be his will or an amendment of his will, the court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act, 1965 (Act No. 66 of 1965), as a will, although it does not comply with all the formalities for the execution or amendment of wills referred to in subsection (1).”

Section 2B was the focus of the recent Supreme Court of Appeal case of Wallage v Williams-Ashman N O and Others (823/2020) [2023] ZASCA 44 (31 March 2023) (the Wallage case) wherein Jakob Marius Wallage (Jakob), who was divorced from Nicola Jean Wallage (Nicola), claimed the constitutional invalidity of the section following her sudden death.

Jakob and Nicola got married on 11 June 2011. Nicola had executed a will prior to their marriage bequeathing her entire estate to Jakob. Nicola and Jakob subsequently divorced on 24 October 2016. On 8 December 2016, being less than 3 (three) months from the date of her divorce from Jakob, Nicola died.

In these circumstances and in accordance with section 2B of the Wills Act, Nicola was deemed to have died intestate and her estate was therefore to be inherited by her parents. Had Nicola died after 3 (three) months from the date of her divorce from Jakob, her entire estate would have devolved upon Jakob. However, because she had died within 3 (three) months of the date of the divorce, Jakob was lawfully disinherited.

Unterhalter AJ found section 2B of the Wills Act to be constitutionally valid despite the surviving spouse, Jakob, claiming the constitutional invalidity of the section on the basis that:

• he had been arbitrarily deprived of property, within the meaning of s 25 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”); and
• should claim 1 be successful, his right of access to the courts, secured by s

34 of the Constitution had also been infringed.

The significance and necessity of section 2B of the Wills Act was well explained by Unterhalter AJ in the Wallage case as he provided that-

“The [South African Law] Commission, in summary, found that divorce is a parting of ways. It brings about a division of assets. A person who divorces may not recognise that their will, executed in happier times, which benefits their ex-spouse, continues to do so, unless revoked. The Commission considered that an appropriate period of time should be afforded to such a person to revise their will, during which their former spouse cannot inherit. Without a legislative intervention of this kind, a divorced person may continue to benefit their former spouse under their will, when nothing of the kind was intended. The proprietary finality that the divorce was meant to bring about could be undermined by a will that continues to benefit a former spouse, when the testatrix would in fact wish otherwise. And so, based on these recommendations, the legislature amended the Wills Act by introducing s 2B.”

(emphasis added) While the legislature makes the assumption that all dissolved marriages end on a sour note between the spouses and does not allow for this assumption to be disproved using evidence outside of the will, the assumption is necessary and is in fact only temporary (3 (three) months from the date of the dissolution). It ensures the protection of spouses who find themselves unable to timeously update their wills should they die within 3 (three) months from the date of the dissolution of their marriage.

To ensure that the surviving ex-spouse to a testator spouse who dies within 3 (three) months of the dissolution of their marriage may still inherit, or, to ensure that a testator spouse may disinherit their surviving ex-spouse should they die after 3 (three) months of the dissolution, the following steps should be taken:

• at the drafting stage of a testator spouse’s will, a clause should be included to reflect what will occur in the event of the dissolution of the marriage either by divorce or separation; and/or
• where parties who intend to marry want for the consequences of the dissolution of their marriage to have no effect on the intention expressed in their wills, the parties should, before they marry, record this intention in a valid ante-nuptial contract which creates real rights as opposed to personal rights which will be enforceable against the whole world.

It would also serve the courts to ensure that all parties to the marriage receive a proper explanation of the consequences of section 2B and that the divorce order includes that each party acknowledges having received the explanation and that each party further binds themselves to the consequences of section 2B. This may reduce the number of disputes centred around section 2B of the Wills Act.