Divorce and death: here is what you need to know

Divorce and death: here is what you need to know

A and B get married in 2011. Five years later, a decree of divorce is issued on 24 October 2016 which includes division of their assets. B then dies on 8 December 2016 with a will executed just after the marriage was concluded. In this will B bequeaths all her assets to her “husband”. The same “husband” whom she divorced almost two months ago.

Section 2B of the Wills Act No. 7 of 1953 addresses this situation. This section states that a will executed before the dissolution of a marriage will be read as if the spouse has already passed, given that the testator/testatrix dies within a period of 3 months of the dissolution. This provision will automatically be implemented unless it can be shown that the testator/ testatrix had indeed intended to benefit his/ her previous spouse, notwithstanding the dissolution. The rationale behind this provision is based on the general assumption that the majority of divorcees would not want to benefit their ex- spouses. The effect and importance of this provision is that a party to a divorce has 3 months after the dissolution of the marriage to amend their will. It is therefore accepted that after this 3 month period the testator/ testatrix had ample time to amend their will and a lack thereof indicates the intention to indeed benefit their previous spouse.

The above-mentioned scenario prevailed itself in the case of J W v Williams-Ashman NO and Others [2020] ZAWCHC 27. Due to the working of this section and B’s failure to nominate any other beneficiaries in her will, B was regarded to have died intestate. It is important to remember that this provision does not take away the right of any person to approach a court of law for the proper interpretation of a will regarding the intention of the testator/ testatrix.  In this case, however, sufficient evidence was not brought before the court to convince the court that it was B’s intention to continue to benefit A, even after their divorce.

When considering the effect of the above-mentioned provision it is of the utmost importance that parties who plan on getting a divorce, who are in the process of a divorce or who recently got divorced, take action on amending their wills to reflect their true intention and wishes.


For more information kindly contact Kelly Fourie-Barnard or Erika Oosthuizen at 044 601 9900 or office@rgprok.com . www.rgprok.co.za


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