Till death or divorce do us part

As newlyweds happily share their marriage vows, divorce and death is probably the last thing on their minds. But as life begins to happen after the wedding, it is critically important that estate planning gets revisited with any major life changes – especially divorce. Angie Poole , Manager – Estates and Business Restructuring at BDO South Africa , shares her insight on the importance of maintaining an up-to-date will so as to avoid any nasty surprises if the unthinkable happens.

?In the majority of marriages civil marriages, civil unions and customary marriages conducted in terms of the relevant legislation, couples typically execute joint or individual wills where they bequeath their assets to the surviving spouse during their marriage. But the rising divorce rate could prove to be a problem for these couples if they do not change the details of their will. According to Stats SA, there were 18,208 completed divorce forms processed in 2021, showing an increase of 13.1% from the 16,097 divorces processed in 2020. From a purely material perspective, divorce is far more disruptive than death, precisely because most people do not plan for it. What are the consequences of the will upon divorce and death. Is it valid or not?

?A will does not expire automatically upon divorce. Section 2B of the Will act, however, makes provision for the revocation of certain testamentary provisions. If the testator’s existing marriage is dissolved by divorce or annulment, the will automatically loses it legal validity in respect of the former spouse should the testator die within three months of the dissolution of the marriage, unless it makes a provision to the contrary in the will.

?Section 2B provides that “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 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”.

?A practical example of this can be seen in the judgement of J.W. v Williams-Ashman NO and Others, where the applicant was married to the deceased and then a divorce decree was issued, that incorporated a consent about the division of their assets. The deceased passed away within three months of the divorce decree and Section 2B came into effect. The applicant then could not inherit from the ex-spouse’s estate. The applicant approached the Western Cape High Court for an order declaring that Section 2B is inconsistent with the Constitution in that I conflicts with Section 25(1) “no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property”.

?The court rejected the argument that the court’s “general oversight function” is excluded by Section 2B. The court held that neither the Act nor the law of succession gives the court a discretion to override the intention of the testator as expressed in the words of the will. The application of the applicant failed, and he was excluded from inheriting from his ex-spouse. Should the ex-spouse have died more than three months after the divorce, the will would have remained valid in its entirety and the surviving ex-spouse would inherit.

The consequences of divorce make is critically it important for divorcees to update their will to reflect the changes in their circumstances. Testators are encouraged to review their will regularly and be aware of the provisions that a will does not automatically expire, due to divorce. This is a relatively simple process that is so often overlooked in the pursuit of a clean break, yet a hindrance that can muddy the waters for far longer than necessary.