DISINHERITANCE OF A SURVIVING SPOUSE WITHIN THREE MONTHS OF DIVORCE

Matthew Cannon

In terms of Section 2B of The Wills Act 7 of 1953 (‘the Act’), if any person dies within three months after dissolution of a marriage, and that person executed a Will before the date of dissolution, such ex-spouse shall be disinherited unless it appears from the Will that the testator specifically intended to benefit his previous spouse.

In such an instance, an ex-spouse’s claim on the inheritance from the testator will be extinguished if the couple were divorced less than three months before the testator’s death. The result of this provision is that a certain grey area exists where the intentions of a testator are not clearly identifiable and surviving spouses and family members are left ruing the ‘unfair’ state of affairs.

However, in the recent case of Louw NO v Kock and Another 2017 (3) SA 62 (WCC), this position was considered for the first time by our courts. In this case, the testator and his ex-spouse were married for 29 years prior to divorcing one another in October 2014.

During divorce proceedings, the parties entered into a settlement agreement and subsequent to doing so, the testator passed away during the course of January 2015 and the ex-spouse had remarried, less than three months after their marriage was dissolved.

During the subsistence of the testator’s marriage to the ex-spouse, the parties completed a joint will which provided that the surviving spouse would be the sole-heir of the other spouse’s estate in the event of their demise. However, subsequent to the testator’s demise, the Master and the Executor of the will refused to execute the aforesaid provision of the Will on the basis that Section 2B of the Act provided that the terms of the Will should be implemented as if the ex-spouse had died before the date of the dissolution of the marriage. In response thereto, the ex-spouse brought an application to compel the Master to execute the provision of the Will, reasoning that Section 2B of the Act was not applicable as the testator intended for her to inherit, despite the divorce.

The Court disagreed with the ex-spouses contention and held that in order for her to inherit in the circumstances, the Will ought to have provided for the longest living spouse to be the sole heir of the first dying spouse, “notwithstanding the dissolution of their marriage”, or words to that effect. Furthermore, it was held that the clear intention of the Will, read together with Section 2B of the Act, excluded the surviving spouse from inheriting.

The decision of the High Court confirmed that in terms of Section 2B of the Act, an ex-spouse may be automatically disinherited and that in order for this position to be reversed, the Will must expressly provide otherwise. This decision has set the precedent for future disputes of a similar nature, as well providing much needed guidance which may prevent any such dispute from materialising at all.

Prepared by:

Arthur Johannes | Attorney | Trust and Estates

Matthew Cannon | Candidate Attorney | Trust and Estates

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)