Automatic disinheritance of ex-spouse by Section 2B of The Wills Act

Katherine Timoney, from the Commercial Litigation Department at Gillan and Veldhuizen.

Recent case law has clarified a grey area of ‘The Wills Act of 1953’, namely the position of surviving ex-spouses if a testator passes away less than three months after a divorce.

In such a case, an ex-spouse will no longer have any claim on inheritance from the testator if the couple were divorced less than three months before the testator’s death.

Let’s back up a moment: Let’s assume you have slaved away your entire life to accumulate wealth, and have spent further time, energy and possibly money on drawing up a will for the purpose of distributing your riches unto those you deem most worthy. In such a case, you will want to ensure that you have a valid will, and that your good intentions are not undone through carelessness or lack of knowledge.

The basic requirements for ensuring that you have a valid will are set out in the Wills Act 7 of 1953. This legislation was amended by the Law of Succession Amendment Act 43 of 1992 with the intention of regulating the effect of divorce or annulment on a testator’s will.

This 1992 amendment introduced section 2B, which reads as follows:

“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.”

Fortunately, recent case law has finally clarified this grey area of the Wills Act, the matter of surviving ex-spouses. Katherine Timoney, from the Commercial Litigation Department at Gillan and Veldhuizen, explains, “not only does the judgment set the precedent, but more importantly, it serves as a reminder of the importance of making one’s intentions exceptionally clear in preparing a will”.

Here’s the recent example: Referring to the recent Western Cape High Court case Louw NO v Kock and Another (2017), Timoney notes this case is the first to consider section 2B of the Act.

The testator in this case and his ex-spouse were married for 29 years before divorcing in October of 2014. The parties had signed a settlement agreement, and the ex-spouse had already remarried when the testator passed away in January of 2015, less than three months after the marriage was dissolved.

While still married, the husband and wife completed a joint will in 2004. Clause 1 of the will provided that the longer-living spouse would be sole heir of the first-dying spouse’s estate; followed by Clause 2 providing that the longer-living spouse bequeathed the estate to the Animal Protection Society. Upon the testator’s death, however, both the Executor and the Master refused to implement Clause 1, citing section 2B of the Wills Act, which provided that the terms of the will should be implemented as if the ex-spouse had died before the date of the dissolution of the marriage.

The ex-spouse then brought an application to compel the Master to implement Clause 1 on the grounds that section 2B was inapplicable because the testator intended for her to inherit in spite of the divorce.

However, the court found that for a previous spouse to inherit in these circumstances, the will must “provide for the longest living to be the sole heir of the first dying notwithstanding the dissolution of their marriage, or words to that effect”. It was determined that the clear intention of the will, combined with the wording of section 2B, excludes the surviving spouse from inheriting, if the marriage is dissolved less than three months before the death of the testator.

Hence, the automatic disinheritance of an ex-spouse in terms of section 2B of The Wills Act was confirmed by the Western Cape High Court.