Section 2B of the Wills Act states that if a person dies within three months after they were divorced (or their marriage was annulled), any will they executed before 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 including section 2B into was to provide for a three-month “grace period” during which divorcees can draft new wills that take proper account of their altered circumstances, says Lize de la Harpe, senior legal adviser at Sanlam Corporate.
Although this provision has been in effect for more than 30 years, many people remain unaware of its implications. De la Harpe unpacks a Supreme Court of Appeal (SCA) case that put this little-known legal provision under the spotlight – and explains what it means for anyone who has been through a divorce.
High Court case
In the matter of J W v Williams-Ashman NO and Others (2020), the High Court in Cape Town 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 out of community of property with accrual on 11 June 2011. Some four 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.
They divorced on 24 October 2016, incorporating a consent paper setting out the division of their assets. On 18 October 2016 – 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.
The applicant could no longer inherit from her estate, because NW died within the three-month period as envisaged by section 2B. As a result, NW’s parents stood to inherit the residue of her estate under the rules of intestate succession because she left no descendants.
The applicant approached the Cape High Court for an order declaring that section 2B is inconsistent with the Constitution because it conflicts with section 25(1) and offends the provisions of section 34. He based his arguments on his allegation that the provisions of section 2B are unknown to the general population, as well as on the email NW sent him regarding his will. The application was opposed.
The court looked 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 SCA decision
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.
Key takeaways
Most people who get divorced do not realise that unless they revoke a prior will that favours their former 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, De la Harpe says.
The possibility of a testator/testatrix spouse dying immediately after their divorce (within the three-month period provided for in section 2B) is extremely low. Thus, in reality, the provision affects only a very small number of people (and that’s in all likelihood why this provision is relatively unknown).
Nevertheless, estate planners and drafters of wills must ensure that divorcing clients are made aware of the implications of section 2B and plan accordingly, De la Harpe says.
Also remember, the provision does not apply in respect of a testator who has executed another will after a 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 three months after the date of divorce.
Disclaimer: The information in this article does not constitute legal, estate planning, or financial planning advice that is appropriate for every individual’s needs and circumstances.
