Divorce and disinheritance: safeguarding your legacy in light of legal implications

NAVIGATING the post-divorce landscape can be challenging, both emotionally and legally. Many individuals focus on the immediate repercussions of their separation, often overlooking a critical aspect that could jeopardise their legacy: the terms outlined in their Last Will and Testament.

One particular legal provision - Section 2B of the Wills Act 7 of 1953 - demands attention from those recently divorced, as it poses a significant risk to the inheritance plans intended for loved ones.

Understanding the Legal Framework

Section 2B of the Wills Act 7 of 1953 stipulates a three-month grace period during which any will executed prior to a divorce is treated as if the former spouse had predeceased the testator. This clause serves as a safeguard but can also become a liability for those overlooking its implications.

After a divorce, if an individual passes away within this three-month window, the automatic exclusion of the ex-spouse from inheritance occurs unless the will explicitly demonstrates the intent to benefit the former spouse.

The specific wording of Section 2B of the Wills Act 7 of 1953 (as amended) states: "If any person dies within three months after his marriage was dissolved by a divorce or annulment by a competent court and that person executed a will before the date of such dissolution, that will shall be implemented in the same manner as it would have been implemented if his previous spouse had died before the date of the dissolution concerned, unless it appears from the will that the testator intended to benefit his previous spouse notwithstanding the dissolution of his marriage." (Wills Act 7 of 1953, s 2B)

Key Case Summary: JW v Williams-Ashman NO (2020)

This pivotal case highlights the consequences of neglecting to update a will after divorce. In this instance, a woman named NW and her husband divorced shortly before she tragically passed away. The court ruled that her ex-husband could not inherit her estate because her will was interpreted under Section 2B, which effectively treated him as having predeceased her.

Despite NW's prior intention to benefit her ex-husband, as indicated in a communication she sent before their divorce, the legal framework did not allow for such intentions to be considered due to the timing of her death. Consequently, her parents inherited her estate instead. This case serves as a stark reminder of the legal implications that can arise from failing to address one's will post-divorce (Moonstone Information Refinery, 2025).

Another Instructive Case: Louw NO v Kock and Others (2020)

Another significant case that emphasises the importance of will revision post-divorce is Louw NO v Kock and Others (2020 (4) SA 335 (SCA)).

This Supreme Court of Appeal case dealt with a complex situation where a testator had not updated his will after his divorce. In this case, Mr Kock and his wife were divorced in June 2016, but he had not amended his will, which had been executed in 2011 when they were still married.

The will named his then-wife as the sole heir and executor of his estate. Tragically, Mr Kock passed away in October 2016, more than three months after the divorce was finalised. The central issue was whether Section 2B of the Wills Act applied in this situation. The Supreme Court of Appeal held that because Mr Kock had died after the three-month period stipulated in Section 2B, the provision was no longer applicable. Consequently, the will had to be executed as written, meaning his ex-wife inherited his estate despite their divorce.

This case underscores that Section 2B offers only temporary protection. After the three-month grace period expires, the will returns to its literal interpretation, potentially resulting in an ex-spouse inheriting assets contrary to what might have been the testator's wishes following the divorce (Cliffe Dekker Hofmeyr, 2021).

Why awareness matters

Despite the existence of this legal provision for over three decades, many people remain uninformed. In the aftermath of divorce, potential beneficiaries may inadvertently find themselves without any inheritance, while unintended heirs may receive the entirety of an estate.

The cases highlighted above demonstrate the gravity of updating one's will post-divorce. Furthermore, while Section 2B provides a temporary safeguard, it is not comprehensive. It does not, for instance, address beneficiary designations in life insurance policies, retirement funds, or other financial products that operate outside the will. These designations require separate attention and updates following a divorce.

The impact of intestate succession

Should a person pass away without a valid will after divorce, the Intestate Succession Act 81 of 1987 applies. Under these circumstances, the estate would be distributed according to a predetermined formula that might not align with the deceased's wishes.

The hierarchy generally begins with spouses and children, followed by parents, siblings, and other relatives.It's worth noting that under intestate succession, a former spouse has no claim to the estate unless specifically provided for in a valid will executed or re-confirmed after the divorce. This legal reality further emphasises the importance of maintaining an updated will that accurately reflects current intentions.

Recommendations for action

Given the stakes involved, it is vital to take proactive steps to ensure your will reflects your current intentions:

Immediate update: as soon as divorce proceedings commence, seek to revise your will. Consider this as critical as any other aspect of your post-divorce life.

Clarity in language: craft your will using precise language that leaves no room for misinterpretation. Clearly articulate your intentions regarding any former spouse.

Comprehensive review: beyond your will, review and update all beneficiary designations on insurance policies, retirement accounts, and other financial instruments.

Regular revisions: make it a practice to review your estate plan periodically, especially after significant life events such as divorce, remarriage, or the birth of children.

Seek professional guidance: engage the services of a legal expert specialising in estate law. Regular financial consultants may not possess the necessary expertise related to the nuances of wills and estates.

Final consideration: your legacy at stake

The choice to delay updating your estate plan is more than a minor oversight - it could lead to unintended consequences that affect your family's future.

As demonstrated in both the JW v Williams-Ashman and Louw NO v Kock and Others cases, your legacy should not be treated lightly. The law provides certain protections, but these are limited in scope and duration. The responsibility ultimately falls on each individual to ensure their final wishes are properly documented and legally binding. Without due diligence, years of asset accumulation and careful financial planning could be undone by administrative oversight.

Conclusion

You are at a pivotal moment in safeguarding your financial future and that of your loved ones. Will you allow complacency to dictate the outcome of your estate, or will you take the necessary steps to secure your wishes? The legal provisions are clear, but your intentions must be defined expressly within your will.

It is vitally important to act without delay to protect your legacy and ensure that your true desires are honoured. Estate planning should be viewed as an ongoing process rather than a one-time event. Just as life circumstances evolve, so too should the legal documents that govern the disposition of your assets.

By staying informed about the legal implications of major life events such as divorce and taking prompt action to update your estate plan accordingly, you can ensure that your legacy reflects your current wishes and priorities.

Sanjith Hannuman is the managing director of Avinash Consultants & Actuaries.

** The views expressed do not necessarily reflect the views of IOL or Independent Media. 

Disclaimer: This column serves to inform and is not a substitute for professional legal advice. Always consult with a qualified attorney for personalised guidance regarding estate planning and applicable laws in South Africa.

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