Is your Will valid after your divorce?

Did you know that if your spouse is a beneficiary in terms of your will, he or she could still receive the inheritance after you divorce? The Wills Act 7 of 1953 governs how wills in South Africa are executed, and more specifically contains a special provision relating to the validity of your will when you divorce and later die.

Section 2B of the Wills Act states that where a testator dies within a period of 3 months after his divorce, that the provisions of his will, which he had executed before the divorce, would be interpreted as if the former spouse had died before the testator. This would essentially mean that during this 3-month period after a divorce, if a testator does not amend his will, his former spouse would not be entitled to inherit. The only exception in this instance would be where the will specifically states that the former spouse should still be entitled to inherit in terms of the will, even after the divorce. The rationale behind this is that the testator did not have enough time after the divorce, to amend his will and it is assumed that he would not have wanted his former spouse to inherit.

The very opposite would be the case if the 3-month period has lapsed after a divorce, and the testator fails to amend his will. After the 3-month period, the testators Will shall be interpreted as if the testator intended for his former spouse to inherit. This means that the fact that the parties are divorced shall not be a valid ground for the former spouse to not inherit, even if the testator had remarried. An inference would therefore be drawn that it was the intention of the testator that his former spouse should still inherit, although the parties are divorced.

The position of Section 2B of the Wills Act would apply to any marriage which is recognized in terms of South African law. It is therefore very important that you regularly read through your existing will and ensure that its provisions are still applicable to your current circumstances. Where you experience any major life changes which affects your assets, it is crucial to ensure that those life changes do not contradict the provisions of your will, and also that what is stated in your will are still your intentions. It would therefore be advisable for every person to read through their will at least once every year. Should you decide to make any amendments to your will or should you redraft it, ensure that you destroy your previous will and ask of whoever is holding on to your previous will for safe keeping, to do the same. If it is necessary to make any amendments, do this by way of a Codicil and not by adding and deleting clauses in your existing will, as you may invalidate your will by doing this.

Should you wish to draft a will or amend your current will, feel free to contact our partners, Kim Armfield and Associates on 021 949 1758 or email info@legalwc.co.za, and one of the legal team would be happy to assist.

Article written by: Crystal Lodewyks – Legal Practioner at Kim Armfield & Associates

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