As a general rule in our law, unlike the laws of some other countries, the change of the status of a testator, such as getting married, having children or getting divorced does not automatically result in the revocation of an existing Will.
One of the important principles in the Law of Succession, is that a beneficiary must be alive to inherit and if not, the benefit will devolve upon a named substitute. In the absence of a named substitute, the inheritance will fall into the residue and the beneficiaries of the residue, will inherit instead. If there are not residue beneficiaries named, the inheritance will devolve in terms of the laws of intestate succession.
Section 2B of the Wills Act No. 7 of 1953, which became law in September 1992, deals with the effect of divorce on one’s Will and states, in short, that, if a testator passes away within three months after their divorce, their ex-spouse will not inherit, even though they are named as a beneficiary in the Will, as they will be regarded as having predeceased the testator, unless it was the testator’s explicit intention that the ex-spouse should inherit. This means that a testator has a grace period of only three months, after a divorce, to change their Will, if they do not want their ex-spouse to inherit. After the three months grace period, the testator’s estate will be divided according to the last Will, which they made before the divorce, and their ex-spouse will inherit.
The reasoning for the incorporation of s2B
Section 2B was introduced because it is accepted that, while it is typical for a testator to leave a portion or the whole of their estate to a surviving spouse, it is generally not the intention of most testators to be equally as generous, after divorce.
Therefore, Section 2B was introduced to create the three-month default position, as already explained above.
Conclusion
Regrettably, many divorced testators do not review their Will in the three-month grace period, so the intended relief is lost to them, and they die with a Will that does not meet their, sometimes obvious, wishes.
The consequences of a Will that has not taken into consideration a recent divorce, can be serious, as an out-of-date Will can easily lead to an untenable and patently unfair, if not harsh, outcome.
If you are not sure if you should make a new Will, it will be best to consult with your Attorney to help you draft a new Will or give you advice on it.
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