Skip to main content

If you read nothing else today, read this. Then make sure to discuss it with family and friends. It concerns changes to the law made 28 years ago. These are changes that very few people – attorneys and non-attorneys included – are aware of. Yet they could prove crucial in the aftermath of someone’s divorce, both immediately as well as many years later.

Read judgment

For the last 28 years, newly divorced people have been protected by an addition to the law that few even know exists. It’s a 1992 amendment to the Wills Act and says if someone dies within three months of divorce, the former spouse inherits nothing, even if a pre-divorce will includes a bequest to that partner. The only way around it is if a deceased former spouse’s will makes it clear that the bequest stands despite the divorce.

This change in the law was introduced to protect newly divorced people. The legislature was aware that for most individuals involved in a divorce, changing their will is not at the top of the list of most pressing problems. Research and experience in other countries too had shown that failure to change one’s will to take divorce into account was a widespread problem. This led the legislatures of many countries to amend their laws.

The way South Africa’s legislature chose to deal with it was to give a grace period of three months during which the divorcing couple must decide if they want to leave bequests to their former spouse or not and then act by changing their wills accordingly.

Your will must stipulate your intention

After three months, that grace period expires, and your will, leaving everything to your now-former husband or wife, is assumed to be a valid expression of your wishes post-divorce. During those first three months, however, your will must stipulate that your intention is to leave a bequest to your former spouse, even though you are now divorced. Otherwise, the former spouse will not inherit.

The South African public (and many divorce attorneys) were reminded of this provision in the recent case of JMW v William-Ashman (executor of the estate of JMW’s former wife, NW).

In June 2011, shortly before the marriage of JMW and NW, NW made a will, leaving her whole estate to JMW. Five years down the line, however, they agreed that their marriage had irretrievably broken down, and a final decree of divorce was granted by the regional court in Cape Town on 24 October 2016.

Disinherited by operation of law

Less than two months later, NW committed suicide, and that’s where section 2B of the Wills Act became relevant: she had died within three months of divorce, leaving a will drawn up before their marriage in which JMW was the sole heir. In terms of section 2B, he would thus be disinherited, unless NW’s will made clear that he was to inherit despite the divorce.

But NW’s will, leaving everything to JMW, said nothing about its terms and bequests applying after divorce. JMW was thus ‘disinherited by operation of law’. Since JMW had been the sole heir of NW’s estate, that meant NW was regarded as having died intestate. And that in turn meant that NW’s parents, in the absence of any surviving children, inherited her estate.

How is this disinheritance actually achieved by the law? Section 2B of the Wills Act needs careful reading, but basically it says that the will of a former spouse who dies within three months of divorce must be implemented as though the surviving former spouse had died before the divorce. The point here is that if that spouse had in fact died before the divorce, he or she could obviously not have inherited after the divorce.

The law was “too narrow”

When these implications became clear to him, JMW challenged the constitutional validity of section 2B at the Western Cape Division of the High Court. He said that the law as it stood amounted to depriving his former wife of her freedom to have chosen JMW as her sole heir. This, in turn, meant her right to dispose of her property as she wished was infringed.

Next, he said that since section 2B deprived him of his inheritance, his own rights under the constitution were infringed.

Finally, he argued that the law was “too narrow” in demanding that his former wife updated her will to show that she intended to benefit him. He claimed to have other evidence that his former wife wanted him to be the beneficiary of her estate, even though they had divorced.

A legitimate and compelling social purpose

For example, according to him, in a conversation between himself and NW after their divorce, she confirmed that she wanted her will, naming him as her sole heir, to stand despite the divorce. Yet under section 2B, this was not accepted as evidence that she intended him to inherit after the divorce, for she had not changed her will to make this stipulation.

According to JMW, this showed the law was unconstitutional: it was “too narrow” by not permitting him to present this evidence to show her intention.

The high court was unpersuaded by JMW, however, and found that section 2B served a “legitimate and compelling social purpose.” JMW then challenged the outcome at the Supreme Court of Appeal (SCA), and the decision on the matter has now been handed down.

Signed in happier times

The five appeal judges found, unanimously, that section 2B was not unconstitutional and that it served an important function.

They said the central question was whether section 2B amounted to “an arbitrary deprivation of property that the constitution does not permit.” They pointed out that previous judgments have found that a law will be “arbitrary” under the constitution if it doesn’t provide good enough reasons for the deprivation in question or if it is procedurally unfair.

So, what were the reasons for adding section 2B to the law? According to the SCA, the explanation of section 2B’s purpose was to be found in the report of the SA Law Commission that led to the amendment. The report said that a person who divorces may not realise that a previous will, benefitting their ex-spouse and signed “in happier times,” will continue to benefit the ex-spouse unless the will is revoked. Without some legislative intervention, “a divorced person may continue to benefit their former spouse under their will, when nothing of the kind was intended.”

Expressing her true intention

In deciding to amend the law, the legislature wanted to give a divorced former spouse an opportunity to amend or revoke the original will. Its assumption was that “a testatrix would not want her ex-spouse to inherit after a divorce.” Section 2B therefore disinherits a previous spouse should a testatrix die within three months without updating her will. After that three-month period, however, her will benefitting her former husband, signed before the divorce, will be taken as expressing her true intention, and it will be given effect to.

“In other words,” said the judges, “if the testatrix does not change her will in the three-month period and it reflects the appointment of her previous spouse as her heir,” it will be taken to mean that she intended her former spouse to benefit.

Clarify her intention

But while JMW accepted that parliament’s intervention to create this provision was for a legitimate purpose, he again expressed his concern that the only way to establish NW’s intention was via her will. His argument was that the law ought to allow other ways of establishing a deceased former spouse’s intention in relation to his or her will.

As far as the SCA was concerned, however, the present system limits disputes about what the testatrix intended. Executing another will or a codicil is the only means through which the testatrix may clarify her intention in the first three months post-divorce, which “fosters certainty and curtails fraud when the testatrix can no longer speak for herself.” To allow the production of other forms of evidence would threaten that certainty, the judges said.

The SCA judges thus found that section 2B was constitutional, dismissed JMW’s appeal, and ordered him to pay the appeal costs of NW’s parents.