By Clement Marumoagae
It is generally accepted that divorce proceedings may be so emotional and time-consuming that spouses who created wills usually do not think about revoking their wills to disinherit the spouses that they are about to divorce. Further that spouses who made wills may not be aware that should they die immediately after the divorce, their wills will be given effect as stated therein thereby benefiting their former spouses even though they did not intend that their former spouses should benefit from their assets. In J W v Williams-Ashman NO and Others 2020 (4) SA 567 (WCC) para 37, the High Court observed that spouses who made wills might neglect to revoke their wills whilst focusing on the divorce processes. To protect divorced people who had no intention of their former spouses benefiting from their sole assets post-divorce, the legislature created a legislative framework that prevents former spouses from benefitting from wills made by testators and testatrixes before the divorce in instances where such testators and testatrixes die immediately after divorce. Generally, such wills are read as if former spouses had predeceased the testators or testatrixes unless their wills expressly provide otherwise.
Section 2B of the Wills Act 7 of 1953 provides that when a spouse dies within three (3) months after their divorce or annulment of their marriage, the will that they made before divorce or annulment of their marriage must be given effect as if their former spouse had died before the dissolution of their marriage unless it appears from the will that they intended their former spouse to benefit despite the divorce or annulment of their marriage. In other words, unless it is clearly stated in the will that the former spouse will benefit as an heir from the testator or testatrix’s estate post the dissolution of the marriage, should the testator or testatrix die within three months of such dissolution, the former spouse will be regarded as having predeceased the testator or the testatrix and thus, disinherited. This interpretation was confirmed in Louw NO v Kock and another [2017] JOL 38057 (WCC) para 15, where the court held that section 2B of the Wills Act ‘… clearly means that the death of one of the previous spouses within three months after a 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’.
The Supreme Court of Appeal in W v Williams-Ashman N O and Others; 2023 (4) SA 113 (SCA) was called upon to determine whether section 2B was invalid and unconstitutional. In this case, the appellant was married to the deceased who made a will days before their marriage wherein the appellant was nominated as the sole heir. In her will, the deceased bequeathed her entire estate to the appellant. The appellant and the deceased divorced and the deceased died less than three months after the date of divorce. The court noted that section 2B of the Wills Act disinherited the appellant by operation of law. Further that the deceased must be taken to have died intestate since the appellant was the sole heir under her will. The court was of the view that the deceased’s parents should inherit the deceased’s estate.
The appellant challenged the constitutionality of section 2B of the Wills Act on the basis that this section amounts to arbitrary deprivation of property in terms of section 25(1) of the 1996 Constitution. The appellant argued that section 2B of the Wills Act restricts the testator or testatrix’s freedom to choose their own heir and infringes their right to dispose of their property as they wish. He further argued that he was deprived of his inheritance, also in infringement of section 25(1) of the 1996 Constitution. Most importantly, the appellant contended that section 2B was arbitrary in that 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’ (para 8).
In his unanimous judgment, Unterhalter AJA held that the appellant did not have legal standing to argue that the deceased’s freedom of testation was limited because this was the deceased’s freedom to enjoy and the property in question did not belong to the appellant. With respect to the loss of inheritance argument, the court held that the appellant’s right to inherit did not accrue because section 2B extinguished any prospect of the appellant securing the right to inherit. The court was of the view that ‘… a prospective personal right to claim an inheritance that might never accrue, is too remote an interest to amount to property to trigger the constitutional protections of s 25’. The court assumed without deciding that the appellant’s right to inherit does amount to property in the context of section 25 of the 1996 Constitution to the extent that the appellant was deprived of such property.
Unterhalter AJA observed that to determine the actual intention of the testator or the testatrix, the court does not consider his or her general wish to benefit the former spouse but an intention to do so as expressed in the will, notwithstanding the dissolution of the marriage. He noted that ‘… a will, properly executed, is the document that authoritatively reflects the genuine and voluntary dispositions of a testatrix’ (para 26). He opined further that the limitation of section 2B of the Wills Act is justified by the need to treat a duly executed will as dispositive of the testator or testatrix’s intention. Unterhalter AJA was of the view that there is nothing arbitrary in doing so. He further held that the limitation limits disputes regarding the testator or testatrix’s intention and elevates the will as the authoritative and binding expression of the testator or testatrix’s intentions. Most importantly, this fosters certainty and curtails fraud when the testator or testatrix can no longer speak for herself. Exploration of evidence outside the will undermines what is intended by the will. In dismissing the appellant’s appeal, Unterhalter AJA held that the appellant failed to demonstrate that section 2B permits an arbitrary deprivation of property that infringes section 25 of the 1996 Constitution.
In conclusion, this judgment illustrates that section 2B of the Wills Act is constitutionally compliant and serves an important purpose. The SCA endorsed the view that section 2B of the Wills Act creates a three-month grace period during which divorced spouses could revoke their wills to reflect the proper account of their altered circumstances. Should they not revoke their wills during the three-month period after divorce, the wills drafted before divorce and any bequests to the ex-spouses remain intact should the testators or testatrixes die after the three-month grace period. This means that the deceased former spouses’ wills that were created before the divorce will be given effect and all the beneficiaries named in such wills will be entitled to the benefits allocated to them should the testators or testatrixes die after three months of the divorce. Should any dispute arise in respect of the will created by a deceased during the marriage who subsequently died within three months after the date of divorce, feel free to contact us for legal assistance.
