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Divorce and Death – the impact of Section 2B on your will

23 August 2019 Lize de la Harpe, Legal Adviser at Glacier by Sanlam

Introduction

Not many people are aware of the statutory disqualification as set out in Section 2B of the Wills Act No. 7 of 1953, which states that if a testator dies within three months of becoming divorced, and that person executed a will before such divorce, the will shall be implemented as if the previous spouse had died before the date of divorce, unless it is clear from the will that the testator intended to benefit their ex-spouse despite the divorce. In this edition we look at the impact of this section.

The Wills Act No. 7 of 1953

Section 2B of the Wills Act No. 7 of 1953 (“the Act”) 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.”
(my emphasis)

Simply put: if a testator dies within three months of his/her divorce, and that person executed a will before the divorce, the will shall be implemented as if the previous spouse had died before the date of divorce, unless it is clear from the will that the testator intended to benefit his ex despite the marriage ending.

Case law

One of the first cases to deal with the interpretation of Section 2B of the Act was the matter of Louw NO v Kock and another 2017 (3) SA 62 (WCC).

In 2004 the first respondent and her previous spouse executed a joint will in which (at clause 1) they each nominated the survivor of them (“die langslewende”) as sole and universal heir. After 29 years of marriage, they divorced in October 2014. The deceased died within three months after the divorce on 7 January 2015.

The Master (the second respondent) refused to give effect to the relevant clause of the will for the reason that section 2B of the Act prevented the first respondent from inheriting. The first respondent (who had long since remarried) instituted an action to compel the Master to give effect to the will. She claimed that she was entitled to inherit under the will as no other person was nominated as heir to the deceased, and because it appeared that the deceased did not intend to benefit any other person upon his death. She furthermore claimed that it was the deceased’s intention at all times that she should inherit, notwithstanding their divorce.

In its judgement, the court examined the rationale behind the inclusion of section 2B (as introduced by section 4 of the Law of Succession Amendment Act No. 43 of 1992), being to regulate the effect of a divorce or the annulment of a marriage on a will. The legislature had in fact created a three-month “grace period” during which divorcees could draft new wills that take proper account of their altered circumstances. Failure to update a will during this three-month period would leave the will (and any bequests to the ex-spouse) intact should the testator die after the three-month grace period. The operation of this section, however, leaves the remainder of the will unaffected, and therefore other beneficiaries will still be entitled to the benefits allotted to them by the testator.

The court held that the meaning and effect of section 2B is clear and unambiguous – the death of one of the previous spouses within three months of the date of divorce will result in the surviving previous spouse being deemed to be predeceased and thus unable to inherit unless it appears from the will itself that the deceased testator intended to benefit the surviving previous spouse. In this instance there was no such intention – the will simply provided for the longest living to be the sole heir of the first dying. The Court held that, if the deceased intended the first respondent to inherit after divorce, the will would have explicitly stated so or he would have made a new will indicating as such. The Court furthermore confirmed that section 2B does not permit extraneous evidence – the testator’s intention must appear from the will itself. The court quoted from the judgement in the matter of Aubrey-Smith v Hofmeyer 1973(1) SA 655 C where the learned judge held as follows at 657E:

“Generally speaking, in applying and construing a will, the Court’s function is to seek and to give effect to, the wishes of the testator as expressed in the will. This does not mean that the Court is wholly confined to the written record. The words of the will must be applied to the external facts and, in this process of application, evidence of an extrinsic nature is admissible to identify the subject or object of a disposition. Evidence is not admissible, however, where its object is to contradict, add to or alter the clearly expressed intention of the testator as reflected in the words of the will.”
(my emphasis)

The claim was accordingly dismissed.

Conclusion

The meaning and effect of the statutory disqualification as set out in section 2B is clear: if you die within three months of your divorce, and you executed a will before your divorce, that will shall be implemented as if your previous spouse had died before the date of the divorce, unless it appears from the will itself that you intended to benefit him/her despite the divorce.

The only way to rebut this presumption is to prove that the will makes it clear that the testator intended to benefit the previous spouse despite their divorce – which then calls for the interpretation of the will itself. When interpreting a will, the court’s function will be to give effect to the wishes of the deceased as expressed in the will. The courts have over time evolved a number of presumptions when interpreting wills, such as the presumption against intestacy and the presumption that, if the language used in the will is ambiguous or doubtful, that the meaning ought to be given to the will which is in accord with the general wishes of the testator to be gathered from the terms of the will read as a whole. HOWEVER (and in the interest of freedom of testation), these presumptions may only be resorted to if the language of the will is unclear. If the intention of the testator is clear from the will (as was the case in the Louw- matter discussed above), there will be no need for interpretation thereof and these presumptions will not be applied.

Interestingly, similar provisions to section 2B preventing a former spouse from inheriting under the will of a deceased previous spouse (unless a contrary intention appears from the will) can be found in other jurisdictions as well, such as England, Australia and the US – to name a few. The three-month “grace period” is, however, quite unique to South African law.

Be that as it may, it is quite clear from the above that one should consider the impact of section 2B when drafting and/or updating a will – especially if you are in the process of getting divorced. If you intend your previous spouse to inherit despite the divorce, it would be advisable to explicitly state so in your will (or to draft a new will indicating this).

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