Warning for divorced people in South Africa
While many South Africans getting a divorce hope for a quick separation, many neglect their estate planning, which can leave their entire estate to their ex-spouse.
Charlize Byrne at Van Deventer Dowlath & Marx Inc warned that many believe that the Master of the High Court will realise that they are divorced. However, they will only look at the will.
“A valid Will remains legally binding until revoked or amended. Section 2B of the Wills Act 7 of 1953 creates a temporary safeguard for people adjusting to life after divorce,” said Byrne.
“But that protection vanishes once the statutory three-month grace period expires.”
Section 2B means that if a person dies within three months of their divorce decree being granted, the law operates under a “statutory fiction” that the former spouse predeceased the deceased for inheritance purposes.
This would exclude the ex-spouse from inheriting unless the will states that the testator (the person who signs the will) intended to benefit them regardless of the divorce.
That said, Byrne warned that the statute specifies three months instead of a fixed 90 days; calculating the exact timeline is critical.
Only after those three months have elapsed does the temporary safeguard disappear, and the will is executed strictly according to the written terms.
Section 2B was tested in the Western Cape High Court case JW v Williams-Ashman NO and Others (2020).
In this case, the testator passed away within three months of her divorce without updating her pre-marriage will, which named her husband as sole heir.
After the executor applied Section 2B to disinherit the ex-husband, he challenged the constitutionality of the statute.
The court would uphold Section 2B as rational and constitutional, which protected her estate during the grace period.
Despite Section 2B offering protection, Byrne warned that the case is a stark warning for anyone who delays updating their estate plan past the statutory deadline.
Had the deceased in the case died after the three-month grace period expired, her ex-husband would have inherited her entire estate.
Like a gym contract
Byrne said that the legal outcome rests on the foundational principle of South African law known as freedom of testation.
Courts are required to respect a testator’s recorded written instructions and cannot alter or invalidate a will even if the outcome seems unfair, given the marriage’s conclusion.
“Like a gym membership, reviewing your estate plan becomes something you tackle tomorrow, then next week, then next month. Life moves quickly,” she said.
“Taking the time to review your will ensures that it continues to reflect your current wishes and not those of a chapter that has already closed. After all, your ex should remain in your past, not in your will.”
She gave a host of tips to South Africans getting a divorce, including recording the exact date your divorce decree was granted to monitor the three-month grace period.
One should also execute an amendment, with a new will, immediately formally revoking their former spouse’s benefit.
Reviewing one’s life insurance policies, retirement funds, and living annuities is also essential, as they fall outside the scope of a will and must be updated directly.
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