2B or not 2B – A cautionary tale

Section 2B of the Wills Act 7 of 1953 was introduced to the statute book by section 4 of the Law of Succession Amendment Act 43 of 1992. The preamble to the Act states that it is intended to “regulate the effect of a divorce or the annulment of a marriage on a will”.

Section 2B states that if a testator dies within three months of his divorce, his divorced spouse will be deemed to have predeceased him and the ex-spouse will be excluded from inheriting unless it appears from the Will that the deceased wanted to benefit his surviving previous spouse. In short, Section 2B provides a three-month grace period for divorcees to make new Wills.

After nearly 25 years of section 2B’s inclusion on the statute book, no cases regarding its application have come before Court, until now. The background facts of the case were: Mr K and Ms K had been married for some 29 years and made a joint Will in which they each nominated the survivor of them as sole heir. The Will provided further that if the survivor died without making a new Will, the survivor bequeaths his or her estate to the SPCA. Mr K and Ms K divorced on 17 October 2014 and Mr K died on 7 January 2015. The death of Mr K was within three months of the divorce. The Master of the High Court refused to give effect to the Will on the basis that the statutory disqualification – section 2B – prevented Ms K from inheriting.

Ms K instituted action against the executor of Mr K’s estate and claimed that she is entitled to inherit under the Will as no other person is nominated as heir to the deceased and that Mr K did not intend to benefit any other person other than her. The Court held that the meaning and effect of section 2B are clear and unambiguous and if Mr K had intended to benefit Ms K after their divorce, he would have expressly stated it. Ms K’s claim was dismissed.

The effects of a divorce, before and after, are emotionally devastating. More importantly, not updating your Will post-divorce has the potential to create even more serious and unintended consequences.

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